See Signature Line for Additional Counsel CENTRAL DISTRICT ... · 7/1/2014 · Body Fortress Super Advanced Whey Protein. 1 and Body Fortress Super Advanced Whey Isolate (the “Products”)

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Jonathan N. Shub (SBN 237708) SEEGER WEISS LLP 1515 Market Street, Suite 1380 Philadelphia, PA 19102 Phone: (215) 564-2300 Fax: (215) 851-8029 [email protected] Attorneys for Plaintiffs See Signature Line for Additional Counsel

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

LAZARO RODRIGUEZ, JASON MENCER, and VINCENT DOUGHERTY, on behalf of themselves and all others similarly situated, Plaintiffs, CASE NO.: v. CLASS ACTION COMPLAINT

JURY TRIAL DEMANDED NBTY, INC., UNITED STATES NUTRITION, INC., and HEALTHWATCHERS, INC.; Defendants, ____________________________________/

CLASS ACTION COMPLAINT

Plaintiffs, Lazaro Rodriguez, Jason Mencer and Vincent Dougherty, on

behalf of themselves and all others similarly situated, by and through their

undersigned attorneys, bring this Class Action Complaint against Defendants,

CLASS ACTION COMPLAINT 1

Case 2:14-cv-05086 Document 1 Filed 07/01/14 Page 1 of 35 Page ID #:1

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NBTY, Inc., United States Nutrition, Inc., and Healthwatchers, Inc., (hereinafter

collectively referred to as “Defendants”), and for their Complaint allege, upon

personal knowledge as to themselves, and upon information and belief and based

upon the investigation to date of counsel, allege as follows:

INTRODUCTION

1. This is a class action on behalf of all persons and entities in the United

States and the states of California, Florida and Pennsylvania who purchased the

products Body Fortress Super Advanced Whey Protein1 and Body Fortress Super

Advanced Whey Isolate (the “Products”) from Defendants who misrepresent the

amount of whey protein available in the Products.

2. The whey protein industry is a growing and extremely competitive

business environment: “during the forecast period, [the market for] protein

products is expected to grow by 62% to reach US$7.8 billion in 2018.”

http://www.euromonitor.com/sports-nutrition-in-the-us/report

3. However, the price of wholesale whey protein keeps increasing and is

usually purchased for roughly $15-$18/kilo, making the profit margins on whey

protein powder products very low.

1 Super Advanced Whey Protein contains two types of whey protein; whey protein concentrate and whey protein isolate.



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4. Defendants designed, manufactured, warranted, advertised and sold

the Products throughout the United States, including in the states of California,

Florida and Pennsylvania.

5. In an effort to reduce protein manufacturing costs, Defendants add

cheaper free form amino acids and non-protein ingredients to increase the nitrogen

content of the Products’ protein powder. Nitrogen is the “tag” used by a common

protein content test to determine the amount of protein in a product; but this is

neither a direct measure of the actual protein content in a product nor a measure of

the type of nitrogen containing compounds in a product.

6. This act is commonly referred to as “protein-spiking”, “nitrogen-

spiking” or “amino-spiking”, and was evidenced recently in the 2007 pet food

incident, which lead to domestic recalls of these products, and the 2008 Chinese

milk powder scandal, when melamine, a nitrogen-rich chemical, was added to raw

materials to fake high protein contents.

7. As a result of Defendants’ practices, the consumer is left with a

product that contains approximately 30% less whey protein than Defendant

represented.

8. This practice has been condemned by the American Herbal Products

Association (AHPA), an organization of dietary supplement manufacturers, which

has issued a standard for manufacturers for measuring the True Protein content of

their products which:



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a) Defines protein as “a chain of amino acids connected by peptide

bonds” for labeling purposes;

b) The use of calculations to include only proteins that are “chains of

amino acids connected by peptide bonds; and

c) To exclude any “non-protein nitrogen-containing substances”

when counting total protein content.

www.ahpa.org/Default.aspx?tabid=441, April 1, 2014

9. Defendant NTBY, Inc. has been a member of AHPA since 1993.

10. Even one of the largest distributors in the United States of whey

protein products, General Nutrition Centers, Inc. (“GNC”) has publicly criticized

the kind of conduct engaged in by Defendants, essentially claiming it to be

misleading to consumers. According to GNC, consumers cannot be sure that they

are getting 100 percent protein in their products since companies don’t always

show how they figure total grams of protein per serving.

www.gnclivewell.com/realprotein.

11. Despite the knowledge that “protein-spiking” is misleading to

consumers, Defendants continue to advertise, distribute, label, manufacture and

market the Products in a misleading and deceptive manner.


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PARTIES

Named Plaintiffs

12. During the Class period, Lazaro Rodriguez and California Class

Members purchased the Product Body Fortress Super Advanced Whey Protein

through Walmart and various other retailers such as CVS, Walgreens, and

numerous others. Plaintiff Rodriguez and Class Members suffered an injury in fact

caused by the false, fraudulent, unfair, deceptive and misleading practices set forth

in this Complaint. Lazaro Rodriguez is a resident of the County of Los Angeles,

State of California, and the events set forth in the Complaint took place therein,

who, on or about May 31, 2014, purchased the Product Body Fortress Super

Advanced Whey Protein, with the UPC Code 074312296550, for his own use and

not for resale from Walmart located at 8333 Van Nuys Blvd, Panorama City, CA

91402.

13. During the Class period, Jason Mencer and Florida Class Members

purchased the Product Body Fortress Super Advanced Whey Protein through

Walmart and various other retailers such as CVS, Walgreens, and numerous others.

Plaintiff Mencer and Class Members suffered an injury in fact caused by the false,

fraudulent, unfair, deceptive and misleading practices set forth in this Complaint.

Jason Mencer is a resident of the County of Polk, State of Florida, and the events

set forth in the Complaint took place therein, who, on or about June 21, 2014,

purchased the Product Body Fortress Super Advanced Whey Protein for



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approximately $16.98, with the UPC Code 074312443152, for his own use and not

for resale. Plaintiff Mencer made regular purchases of Defendants’ product,

approximately one container every two to three weeks for the past several years,

from two Walmart locations in Polk County, FL. These two Walmart’s are located

at 355 Cypress Gardens Blvd, Winter Haven, FL 33880 and 5600 State Road 544,

Winter Haven, FL 33880.

14. During the Class period, Vincent Dougherty and Pennsylvania Class

Members purchased the Product Body Fortress Super Advanced Whey Protein

through Walmart and various other retailers such as CVS, Walgreens, and

numerous others. Plaintiff Dougherty and Class Members suffered an injury in fact

caused by the false, fraudulent, unfair, deceptive and misleading practices set forth

in this Complaint. Vincent Dougherty is a resident of the County of Clearfield,

State of Pennsylvania, and the events set forth in the Complaint took place therein,

who, on or about May 27, 2014, purchased the Product Body Fortress Super

Advanced Whey Protein, with the UPC Code 074312443152, for his own use and

not for resale from Walmart located at 20 Industrial Dr., Dubois, PA 15801, for

approximately $15.98.


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Defendants

15. NBTY, Inc. is licensed in the State of Delaware, with a principal place

of business address at 2100 Smithtown Avenue, Ronkonkoma, NY 11779. Under

information and belief NBTY, Inc. has controlling interest in United States

Nutrition, Inc. and Healthwatchers, Inc.

16. Defendant NBTY (“NBTY”) is the parent company of Defendants,

United States Nutrition, Inc. and Healthwatchers, Inc.

17. Unites States Nutrition, Inc. is licensed in the State of Delaware, with

a principal place of business address at 90 Orville Drive, Bohemia, NY 11716, and

upon information and belief is a subsidiary of Defendant NBTY, Inc.

18. Healthwatchers, Inc. is licensed in the State of Delaware, with a

principal place of business address at 90 Orville Drive, Bohemia, NY 11716, and

upon information and belief is a subsidiary of Defendant NBTY, Inc.

JURISDICTION AND VENUE

19. This Court has jurisdiction over the subject matter of this action

pursuant to the Class Action Fairness Act, in that (i) there is complete diversity

(Plaintiffs are citizens of California and Defendants are incorporated in Delaware

and otherwise maintain their principal places of business in New York), (ii) the

amount in controversy exceeds $5,000,000.00 (Five Million Dollars) exclusive of


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interests and costs, and (iii) there are 100 or more members of the proposed

Plaintiffs class2.

20. Defendants conduct substantial business in California, including the

sale and distribution of the Products in California, and have sufficient contacts with

California or otherwise intentionally availed itself of the laws and markets of

California, so as to sustain this Court’s jurisdiction over Defendants.

21. Venue is proper in this district pursuant to 28 U.S.C. § 1391, because

a substantial part of the events or omissions giving rise to this claim occurred in

this District, a substantial part of the property that is the subject of this action is

situated in this District, and Defendants are subject to personal jurisdiction in this

District.

22. As a result of Defendants’ manufacturing, marketing, distributing,

promoting, and selling the Products to purchasers throughout California, either

directly or indirectly through third parties or related entities, Defendants have

benefitted from the laws of California and profited from California commerce.

23. Defendants conducted systematic and continuous business activities

in and throughout the State of California by selling and distributing the Products

2 Defendants’ Products are sold through numerous different online and brick/mortar retailers, including but not limited to; Walmart, Walgreens, CVS, Kmart, and Bodybuilding.com. There are likely hundreds of thousands of class members composing the proposed classes with tens of millions of dollars spent on the Products due to the far reaching distribution channels and high consumer demand for whey protein products.



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throughout the State of California, and otherwise intentionally availed themselves

of markets in the State of California through the promotion and marketing of their

business, including the sale of the Products at issue in this litigation.

STATEMENT OF FACTS

The Differences Between Whey Protein & Free Form Amino Acids

24. Whey is a complete protein source, which means it contains all the

essential amino acids your body needs to build protein-based compounds such as

muscle tissue, skin, fingernails, hair and enzymes. Daily protein need depends on

your size, gender and activity levels, although it likely amounts to somewhere

between 46 grams and 56 grams. For elite athletes, daily protein requirements are

well over 100 grams, which is often difficult to get just from eating food. Of

course, persons may need to supplement their protein intake for reasons of ill-

health as well.

25. Whey protein powder is especially rich in branched-chain amino acids

-- such as leucine, isoleucine and valine -- which are metabolized directly within

your muscles as opposed to being processed in your liver first.

26. The 2005 dietary reference intake (DRI) guidance clearly defines

protein as macromolecules with links of amino acids, and does not mention amino

acids or creatine. Although amino acids are the building blocks of protein, they do


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not have the same beneficial effects of whole protein. Part of the reason for this

has to do with protein digestion and absorption.

27. There have been several studies that have shown that protein is

absorbed more rapidly than amino acids.3

28. A study was conducted to determine whether the effects of whey

protein ingestion on muscle protein accrual are due solely to its constituent

essential amino acid content. The study was a comparison of three trial groups. The

first provided 15g of intact whey protein (whey protein powder). The other 2 trials

provided either the individual essential amino acids (7g) or the individual non-

essential amino acids (8g) found in whey. The researchers determined that whey

protein ingestion improves skeletal muscle protein accrual through mechanisms

that are beyond those attributed to its essential amino acid content.4

29. Another study found that “the lack of recovery after immobilization-

induced atrophy during ageing is due to an ‘anabolic resistance’ of protein

synthesis to amino acids during rehabilitation.” The study’s results “highlight a

3 Di Pasquale MG. Amino Acids and Proteins for the Athlete: The Anabolic Edge, Second Edition. Boca Raton, FL: CRC Press; 2008:190. 4 Katsanos C, et al. Whey protein ingestion in elderly results in greater muscle protein accrual than ingestion of its constituent essential amino acid content. Nutr. Res. Oct. 2008; 28(10):651-658.



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novel approach to induce muscle mass recovery following atrophy in the elderly by

giving soluble milk protein or high protein diets.”5

30. Further, in a review study the authors concluded that, “the bound form

of an EAA [essential amino acid] may be more efficiently utilized than when

delivered in its free-form.”6

Body Fortress’ Misleading Labeling of Super Advanced Whey Protein & Super Advanced Whey Isolate

31. Defendants feature the name of the ingredient sought by millions of

American consumers, “whey protein” or “whey isolate”, by predominantly

featuring it in the name of the Products, “Body Fortress Super Advanced Whey

Protein” and “Body Fortress Super Advanced Whey Isolate” on the containers.

See Exhibits A and D.

32. Defendants product, “Body Fortress Super Advanced Whey Protein”

is labeled as providing 30 grams of protein per serving:

5 Magne H, et al. Contrarily to whey and high protein diets, dietary free leucine supplementation cannot reverse the lack of recovery of muscle mass after prolonged immobilization during ageing. J. Physiol. Apr 15, 2012; 590(Pt 8): 2035-2049. 6 Terada T, Inui K. Peptide transporters: structure, function, regulation and application for drug delivery. Curr Drug Metab. 2004;5:85-94.



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33. However, Defendants’ claimed total protein count of 30 grams of

protein per serving, in Super Advanced Whey Protein, is not just whey protein but

also includes, for the purposes of “protein-spiking”: several free form amino acids,

including Glycine, Threonline, L-Glutamine, Leucine, Valine, and Isoleucine; the

non-protein amino acid Taurine; and the non-amino acid compound Creatine

Monohydrate.

34. Once these “protein spiking” agents are removed from the formula of

analysis, and the “bound” amino acid count is determined, the true content of whey

protein in the Products can be determined.


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35. After scientific testing of the product Super Advanced Whey Protein,

the actual total content per serving of whey protein is actually around 21.5 grams

(as calculated from the total bonded amino acids) as opposed to 30 grams of

protein claims by Defendants for their “Whey Protein” products. See Exhibit G.

36. Defendants product, “Body Fortress Super Advanced Whey Isolate” is

labeled as providing 30 grams of protein per serving:


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37. However, Defendants’ total protein count of 30 grams of protein per

serving, in Super Advanced Whey Isolate, is not just whey protein (whey isolate)

but also includes, for the purposes of “protein-spiking”: the free form amino acids

Glycine, L-Threonine, L-Glutamine, L-Arginine, L-Alanine, L-Lysine

Hydrochloride, L-Leucine, L- Isoleucine, and L-Valine; and the non-protein amino

acid Taurine.

38. The FDCA actually speaks to the misleading nature of predominantly

using the name of an ingredient in the labeling of a product under 21 C.F.R. §

101.18(b), which states:

The labeling of a food which contains two or more ingredients may be misleading by reason (among other reasons) of the designation of such food in such labeling by a name which includes or suggests the name of one or more but not all such ingredients, even though the names of all such ingredients are stated elsewhere in the labeling. 39. The Defendants mislead consumers by repeatedly referencing whey

protein, including in the name of the Products, but never disclaiming the limited

amount of whey protein that the Products actually deliver or making clear that the

Products’ protein content is only fractionally whey protein.

40. Defendants use the term “whey protein” in a way that is

interchangeable with the term “protein”, so the consumer is misled to believe that

every gram of protein in the Products are comprised solely of whey protein.


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41. For the Product Super Advanced Whey Protein, under the

“Supplement Facts” section of the label, referenced above, under “Other

Ingredients”, the Defendants list Whey Protein Concentrate and Whey Protein

Isolate in their “Super Whey Protein Blend”.

42. In contrast, Defendants disclose the “protein-spiking” agents in a

separate category they call the “Super Recovery Blend” which makes no reference

to the word “protein”.

43. For the Product Super Advanced Whey Isolate, Defendants do the

same thing under the “Supplement Facts” section of the label. Under “Other

Ingredients”, the Defendants first list the ingredient Whey Protein Isolate, and then

disclose the “protein spiking” ingredients under the category “Super Recovery

Blend” which makes no mention of protein.

44. A reasonable consumer, looking at the name of the Products, and

reading the “Supplement Facts”, is misled into thinking that the 30 grams of

protein per serving claimed by Defendants for the Whey Protein Products are

derived exclusively from the “Super Whey Protein Blend” or “Whey Protein

Isolate”.


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45. Moreover, Defendants make further deceptive references to whey

protein on the actual label of the product Super Advanced Whey Protein:

a) “60g PREMIUM PROTEIN”7;

b) “PREMIUM WHEY PROTEIN”;

c) “Body Fortress Super Advanced Whey Protein delivers a

powerful blend of premium proteins athletes need to support

lean muscle mass and maximize their training.”;

d) “Body Fortress Super Advanced Whey Protein features a Super

Recovery Blend to further enhance the benefits of our

premium Whey Protein Blend.”;

e) “Whey is the preferred protein source in sports and bodybuilding

nutrition because it contains superior quality Branched Chain

Amino Acids — made up of Leucine, Isoleucine and Valine —

which are important for the maintenance of muscle tissue.”; and

f) “Contains naturally occurring Branched Chain Amino Acids

from protein.”8

See Exhibits A-C.

7 60 grams of protein per two (2) servings. 8 Defendants say “protein” in this statement to mean complete protein which contains Branched Chain Amino Acids (“BCAAs”). Defendants do not differentiate between Whey Protein and the other non-protein sources they use towards their protein count. Creatine Monohydrate, Glycine and Taurine do not contain BCAAs.



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46. Defendants make further deceptive references to whey protein on the

actual label of the product Super Advanced Whey Isolate:

a) “60g ULTRA PURE PROTEIN”:

b) “Over 9 grams of BCAAs from Protein”9;

c) “Super Advanced Whey Isolate contains protein that is processed

using microfiltration to ensure an isolated whey that contains

minimal lactose & fat. These isolation processes separate the

valuable protein from non-protein materials yielding a highly-

purified whey isolate.”;

d) “State-of-the-art manufacturing processes are used to retain the

active Whey Protein Peptides & Microfractions — some other

whey isolate processing methods remove Glycomacropeptides,

which are an important protein component.”;

e) “Enhanced with additional free-form amino acids to work

synergistically with Whey Isolate's high concentration of

aminos.”;

f) “2 scoops contain over 9 grams of the following Branched Chain

Amino Acids from protein”; and

9 Defendants say “protein” in this statement to mean complete protein which contains Branched Chain Amino Acids (“BCAAs”). Free form amino acids do not contain BCAAs.



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g) “Whey protein has been relied upon for years by athletes,

bodybuilders and anyone looking to get into their best

shape. Super Advanced Whey Isolate provides all of the benefits

Whey is known for and more by carefully removing more of the

fat and lactose that you don't need.”

See Exhibits E-F.

47. Defendants also include a graph on the labels of the Products which

explain the benefits of whey protein, exclusively, furthering the false impression

that whey protein is the sole source of protein within the Products. See Exhibits B

and E.

48. All of these misleading label claims, along with the Products’ names,

“Super Whey Protein Blend” and “Whey Protein Isolate”, taken together, mislead

reasonable consumers that the protein content of the Products were derived solely

from whey protein.

49. Nowhere on the label does it state, or even imply, that the protein

content contains any, let alone substantial amounts of free form and non-protein

amino acids.

50. Plaintiffs and Class Members were in fact misled by Defendants’

representations regarding the true nature of the protein content and value.

51. The difference between the Products promised and the Products sold

is significant. The amount of actual protein provided, and the measure of protein



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per serving, has real impacts on the benefits provided to consumers by the

Products, and the actual value of the Products themselves.

52. Persons requiring a certain amount of protein supplementation,

whether as part of a fitness regimen or for real health needs, are left to ingest less

protein than Defendants state will be provided.

53. Defendants’ misleading claims contained herein are in violation of 21

C.F.R. § 101.18(b), making the Product misbranded.

54. Defendants’ deceptive statements violate 21 U.S.C. § 343(a)(1),

which deems food (including nutritional supplements) misbranded when the label

contains a statement that is “false or misleading in any particular”.

55. California prohibits the misbranding of food in a way which parallels

the FDCA through the “Sherman Law”, Health & Saf. Code § 109875 et seq. The

Sherman Law provides that food is misbranded “if its labeling is false or

misleading in any particular.” Id.

56. The Sherman Law explicitly incorporates by reference "[a]ll food

labeling regulations and any amendments to those regulations adopted pursuant to

the FDCA," as the food labeling regulations of California. Cal. Health & Saf.

Code, § 110100, subd. (a).

57. Plaintiffs and Class Members would have purchased another whey

protein product, if any at all, or would have only paid for the whey protein actually


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delivered with the Products, if they would have not been deceived by the

misleading labeling of the Products by Defendants.

CLASS ACTION ALLEGATIONS

58. Plaintiffs bring this class action pursuant to Federal Rule of Civil

Procedure 23, and case law thereunder on behalf of themselves and all others

similarly situated, with the Class and Subclasses defined as follows:

NATIONAL CLASS: All persons in the United States that purchased the Products at any time during the four years before the date of the filing of this Class Action Complaint to the present. CALIFORNIA SUBCLASS: All persons in the State of California that purchased the Products at any time during the four years before the date of the filing of this Class Action Complaint to the present. FLORIDA SUBCLASS: All persons in the State of Florida that purchased the Products at any time during the four years before the date of the filing of this Class Action Complaint to the present. PENNSYLVANIA SUBCLASS: All persons in the State of Pennsylvania that purchased the Products at any time during the four years before the date of the filing of this Class Action Complaint to the present.

59. Plaintiffs reserve the right to amend the class definitions following

further investigation and discovery.


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60. Excluded from the Classes are Defendants, any entity in which

Defendants have a controlling interest or that have a controlling interest in

Defendants, and Defendants’ legal representatives, assignees, and successors. Also

excluded are the judge to who this case is assigned and any member of the judge’s

immediate family.

61. Numerosity. The Classes are so numerous that joinder of all members

is impracticable. On information and belief, the Classes have more than 10,000

members. Moreover, the disposition of the claims of the Classes in a single action

will provide substantial benefits to all parties and the Court.

62. Commonality. There are numerous questions of law and fact common

to Plaintiff and members of the Class. These common questions of law and fact

include, but are not limited to, the following:

a. Whether the marketing, advertising, packaging, labeling, and

other promotional materials for the Products are deceptive;

b. Whether Defendants’ actions violate California’s law against

unfair and deceptive acts or practices, Business and Professions Code §17200, et

seq.;

c. Whether Defendants’ actions violate California’s law against

false advertising, Business and Professions Code §17500, et seq.

d. Whether Defendants’ actions violate California’s Consumer

Legal Protection Act, Civil Code §1750, et seq.



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e. Whether Defendants’ actions violate Florida’s Deceptive and

Unfair Trade Practices Act (Florida Statutes §§501.201 et seq.)

f. Whether Defendants were unjustly enriched at the expense of

the Class Members.

63. Typicality. Plaintiffs’ claims are typical of the claims of the Classes.

Plaintiffs’ claims, like the claims of the Classes, arise out of the same common

course of conduct by Defendants and are based on the same legal and remedial

theories.

64. Adequacy. Plaintiffs will fairly and adequately protect the interests

of the Classes. Plaintiffs have retained competent and capable attorneys with

significant experience and complex and class action litigation, including consumer

class actions. Plaintiffs and their counsel are committed to prosecuting this action

vigorously on behalf of the Classes and have the financial resources to do so.

Neither Plaintiffs nor their counsel have interests that are contrary to or that

conflict with those of the proposed Classes.

65. Predominance. Defendants have engaged in a common course of

conduct toward Plaintiffs and members of the Classes. The common issues arising

from this conduct that affect Plaintiff sand members of the Classes predominate

over any individual issues. Adjudication of these common issues in a single action

has important and desirable advantages of judicial economy.


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66. Superiority. A class action is the superior method for the fair and

efficient adjudication of this controversy. Classwide relief is essential to compel

Defendants to keep such adulterated and misbranded products out of the market

and to compensate those who have been misled into purchase of the Products. The

interest of individual members of the Classes in individually controlling the

prosecution of separate claims against Defendants are small because the damages

in an individual action are small. Management of these claims is likely to present

significantly fewer difficulties than are presented in many class claims because

Defendants acted or failed to act on grounds generally applicable to the Classes.

Class treatment is superior to multiple individual suits or piecemeal litigation

because it conserves judicial resources, promotes consistency and efficiency of

adjudication, provides a forum for small claimants, and deters illegal activities.

There will be no significant difficulty in the management of this case as a class

action.

67. Injunctive and Declaratory Relief Appropriate. Defendants have

acted on grounds generally applicable to the Classes, thereby making final

injunctive relief and corresponding declaratory relief with respect to the Classes

appropriate on a class wide basis.


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CAUSES OF ACTION

COUNT I

Violation of the Consumer Legal Remedies Act Cal. Civ. Code §1750, et. seq.

(On Behalf of California Class Members Represented by Lazaro Rodriguez)

68. Plaintiffs incorporate each preceding paragraph as if fully set forth

herein.

69. Plaintiff and each member of the Class is a “Consumer” as that term is

defined by Cal. Civ. Code § 1761(d).

70. The Products are a “Good” as that term is defined by Cal. Civ. Code §

1761(a).

71. Defendants are “Persons” as defined by Cal. Civ. Code § 1761(c).

72. The transaction(s) involved here are “Transaction(s)” as defined by

Cal. Civ. Code § 1761(e).

73. Plaintiff and members of the Class are Consumers who purchased the

Product for personal use within the applicable statute of limitations period.

74. Plaintiff has standing to pursue this cause of action because Plaintiff

has suffered injury-in-fact and has lost money or property as a result of

Defendants’ actions as set forth here.

75. Plaintiff and Class members purchased the Product in reliance on

Defendants’ labeling claims.


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76. Defendants have used deceptive representations with respect to the

Products in violation of Cal. Civ. Code §1770(a)(4).

77. Defendants have misrepresented the sponsorship, approval,

characteristics, or ingredients of the Products in violation of Cal. Civ. Code

§1770(a)(5).

78. Defendants have misrepresented the standard, quality, or grade of the

Products in violation of Cal. Civ. Code §1770(a)(7).

79. Defendants knew or should have known that their representations of

fact are material and likely to mislead consumers.

80. Defendants’ practices, acts, and course of conduct in marketing and

selling the Products are likely to mislead a reasonable consumer acting reasonably

under the circumstances to his or her detriment. Like Plaintiff, members of the

Class would not have purchased the Products had they known the true source of

protein in the Products.

81. Plaintiff and members of the Class have been directly and proximately

damaged by Defendants’ actions.

82. In conjunction with filing this Complaint, Plaintiff’s Counsel mailed

to Defendants, by certified mail, return receipt requested, the written notice

required by Civil Code §1782(a). Should Defendants fail to respond within thirty

days, Plaintiff will amend to seek damages under the Consumer Legal Remedies

Act.



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83. Defendants have engaged in, and continue to engage in, business

practices in violation of the Consumer Legal Remedies Act, Civ. Code §1750, et

seq. by continuing to make false and misleading representations on their labeling

of the Products.

84. These business practices are misleading and/or likely to mislead

Consumers and should be enjoined.

COUNT II

Violation of False Advertising Law Cal. Bus. & Prof. Code § 17500, et seq.

(On Behalf of California Class Members Represented by Lazaro Rodriguez) 85. Plaintiffs incorporate each preceding paragraph as if fully set forth

herein.

86. Plaintiff and the Class have standing to pursue a cause of action for

false advertising under Bus. & Prof. Code §17500, et seq. because Plaintiff and

members of the Class have suffered an injury-in-fact and lost money as a result of

Defendants’ actions as set forth herein.

87. Defendants advertised, marketed, and otherwise disseminated

misleading information to the public through advertising mediums including the

Internet statements regarding the Products.

88. Defendants continue to disseminate such statements.

89. Defendants’ statements are misleading.


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90. Defendants know that these statements are misleading, or could have

discovered their misleading nature with the exercise of reasonable care.

91. Defendants’ misleading statements were part of a scheme or plan to

sell the Products to the public the true source of the protein published on their

product labels and marketing material.

92. Plaintiff and Class members relied on Defendants’ marketing,

labeling, and other product literature.

93. Defendants’ actions violate Cal. Bus. & Prof. Code § 17500, et seq.

94. As a direct and proximate result of Defendants’ actions, as set forth

herein, Defendants have received ill-gotten gains and/or profits, including but not

limited to money from Plaintiff and Class members who paid for the Products.

Therefore, Defendants have been unjustly enriched.

95. Plaintiff and Class members seek injunctive relief, restitution, and

disgorgement of Defendants’ ill-gotten gains as provided for by Cal. Bus. & Prof.

Code §17535.

96. Plaintiff and Class members seek injunctive relief to compel

Defendants from continuing to engage in these wrongful practices in the future. No

other adequate remedy at law exists. If an injunction is not ordered, Plaintiff and

Class members will suffer irreparable harm and/or injury.


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COUNT III Violation of the Unfair Competition Act Cal. Bus. & Prof. Code § 17200, et seq.

(On Behalf of California Class Members Represented by Lazaro Rodriguez)

97. Plaintiff incorporates the preceding paragraphs as if fully set forth

herein.

98. Plaintiff and the Class have standing to pursue a cause of action for

false advertising under Bus & Prof. Code §17200, et seq. because Plaintiff and

members of the Class have suffered an injury-in-fact and lost money as a result of

Defendants’ actions as set forth herein.

99. Defendants’ actions as described herein constitute unfair competition

within the meaning of Bus. & Prof. Code §17200, in that Defendants have engaged

in unlawful, unfair, or fraudulent business practices by violating the federal FDCA,

the federal DSHEA, California’s Sherman Food Drug & Cosmetic Act, and

California’s Consumer Legal Remedies Act.

100. Defendants’ actions as described herein constitute unfair competition

within the meaning of Bus. & Prof. Code §17200, on the additional grounds that

Defendants have failed to properly label the Product in accordance with 21 C.F.R.

101, et seq.

101. Defendants’ actions also constitute unfair competition within the

meaning of Bus. & Prof. Code §17200, in that Defendants have made unfair,


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deceptive, untrue or misleading statements in advertising mediums, including the

Internet, in violation of Bus. & Prof. Code §17500.

102. Defendants’ actions have caused economic injury to Plaintiff and

Class members. Plaintiff and Class members would not have purchased the

Products had they known the true source of the protein content.

103. Pursuant to Bus. & Prof. Code §17203, Plaintiff and Class members

seek an injunction enjoining Defendants from continuing to market, advertise, and

sell the Products without first complying with federal and state law and to prevent

Defendants from continuing to engage in unfair competition or any other act

prohibited by law.

104. Plaintiff and Class members also seek an order requiring Defendants

to make full restitution and disgorgement of their ill-gotten gains of all money

wrongfully obtained from Plaintiff and Class members as permitted by Bus. &

Prof. Code §17203.


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COUNT IV

Violation of the Florida Deceptive and Unfair Trade Practices Act (Florida Statutes §§501.201 et seq.)

(On Behalf of Florida Class Members Represented by Jason Mencer) 105. Plaintiff incorporates the preceding paragraphs as if fully set forth

herein.

106. This is action is brought to secure redress for the unlawful, deceptive

and unfair trade practices perpetrated by Defendants on behalf of Plaintiff and the

Class members.

107. Plaintiff and all Class Members are “consumers” and the transactions

at issue in this complaint constitute “trade or commerce” as defined by Florida

Statutes § 501.203 (7) and (8) respectively.

108. Florida Statutes § 502.201, et seq. was enacted to protect the

consuming public and legitimate business enterprises from those who engage in

unfair methods of competition, or unconscionable, deceptive or unfair acts or

practices in the conduct of any trade or commerce.

109. Defendants’ actions, as alleged herein, constitute affirmative acts or

representations including: unconscionable commercial practices; deception; fraud;

false pretense; false promise; and/or misrepresentation, and therefore are unlawful

under the FDUTPA.


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110. When a FDUPTA claim is based on an affirmative act or

representation, neither intent to deceive by Defendants nor actual reliance by

Plaintiff or the Class need be shown.

111. Defendants’ actions, as alleged herein, constitute knowing omissions

and therefore are unlawful under the FDUTPA.

112. Plaintiff and the Class reasonably and justifiably relied on

Defendants’ deceptive, unfair, fraudulent, misrepresentations, as alleged herein.

Plaintiff and members of the proposed Class and the public were certain to be

deceived because Defendants knowingly failed to disclose the source, affiliation,

origin, characteristics, ingredients, standards and quality of the Products.

Defendants’ business practices in its advertising, marketing, packaging, labeling

and sales of the Products as unique and superior products justifying substantially

higher prices over alternative whey protein dietary supplements, is an

unconscionable, unfair, and deceptive act or practice in violation of the FDUPTA.

113. As a direct and proximate cause of Defendants’ unlawful acts and

omissions, Plaintiff and the Class have suffered an ascertainable loss of money or

property, real or personal, in that they would not have purchased the Products but

for Defendants’ material omissions and affirmative acts or representations in

connection with the marketing, advertising, and sale of the Products.

114. Plaintiff and the Class Members are entitled to compensatory

damages, equitable and declaratory relief, costs, and reasonable attorney’s fees.



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COUNT V Unjust Enrichment

(On Behalf of the National Class and All Subclasses Represented by All Named Plaintiffs)

115. Plaintiff incorporates the preceding paragraphs as if fully set forth

herein.

116. Plaintiff and Class Members conferred benefits on Defendants by

purchasing the Products.

117. Defendants have been unjustly enriched in retaining the revenues

derived from Plaintiff’s and Class Members’ purchase of the Products. Retention

of those monies under these circumstances is unjust and inequitable because

Defendants’ labeling of the Products was misleading to consumers, which caused

injuries to Plaintiff and Class Members because they would have not purchased the

Products if the true facts would have been known.

118. Because Defendants’ retention of the non-gratuitous benefits

conferred on them by Plaintiff and Class Members is unjust and inequitable,

Defendants must pay restitution to Plaintiff and the Class Members for their unjust

enrichment, as ordered by the Court.

RELIEF REQUESTED

Plaintiffs request for the following relief:

A. Certification of the National Class;

B. Certification of the proposed California Subclass;


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C. Certification of the proposed Florida Subclass;

D. Certification of the proposed Pennsylvania Subclass;

D. Appointment of Plaintiffs as class representatives;

E. Appointment of the undersigned counsel as counsel for the Classes;

F. A declaration that Defendants’ actions complained of herein violate

the State of California and Florida consumer protection statutes.

G. A declaration that Defendants were Unjustly Enriched.

H. An order enjoining Defendants from engaging in the unlawful conduct

set forth herein;

I. An award to Plaintiffs and the Classes of restitution and disgorgement

as requested by Plaintiffs’ second and third causes of action;

J. An award to Plaintiffs and the Classes of attorneys’ fees and costs, as

allowed by law and/or equity;

K. Leave to amend this Complaint to conform to the evidence presented

at trial; and

L. Orders granting such other and further relief as the Court deems

necessary, just, and proper.


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DEMAND FOR JURY TRIAL

Plaintiffs demand a trial by jury for all issues so triable.

DATED: July 1, 2014

By: /s/ Jonathan Shub Jonathan N. Shub (SBN 237708)

Scott Alan George (Pro Hac Vice Application Forthcoming) SEEGER WEISS LLP 1515 Market Street, Suite 1380 Philadelphia, PA 19102 Phone: (215) 564-2300 Fax: (215) 851-8029 [email protected]

Nick Suciu III (Pro Hac Vice Application Forthcoming) Alyson Oliver (Pro Hac Vice Application Forthcoming) OLIVER LAW GROUP PC 950 W. University Drive, Ste. 200 Rochester, MI 48307 Telephone: (248) 327-6556 Facsimile: (248) 436-3385 [email protected] www.legalactionnow.com

Jordan L. Chaikin PARKER WAICHMAN LLP (Pro Hac Vice Application Forthcoming) 3301 Bonita Beach Road Bonita Springs, FL 34134 Telephone: (239) 390-8609


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Facsimile: (239) 390-0055 [email protected]

Bassma Zebib (SBN 276452) LAW OFFICE OF BASSMA ZEBIB 811 Wilshire Blvd, Ste. 1708 Los Angeles, CA 90017 Telephone: (310) 920-7037 [email protected]

Attorneys for Plaintiffs and the Proposed Classes


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Documents

See Signature Line for Additional Counsel CENTRAL DISTRICT ... · 7/1/2014 · Body Fortress Super Advanced Whey Protein. 1 and Body Fortress Super Advanced Whey Isolate (the “Products”)